COLUMN-Anonymous online reviews may not be so anonymous: Frankel

May 09, 2013|Reuters

(Alison Frankel writes the On the Case blog for Thomson ReutersNews & Insight http://newsandinsight.com. The views expressedare her own.)

By Alison Frankel

NEW YORK, May 9 (Reuters) - On Wednesday, the Public CitizenLitigation Group filed an appeal for the online review site YelpInc, asking the Virginia Court of Appeals to review atrial-court order compelling Yelp to reveal the identity ofseven anonymous reviewers who complained about a Washingtoncarpet-cleaning service that subsequently sued them for libeland defamation.

Yelp and Public Citizen contend that Alexandria City CircuitCourt Judge James Clark got it wrong when he ruled that despiteFirst Amendment protection for anonymous online critics, aVirginia statute requires the disclosure of their names whentheir identity is central to claims against them.

That's a pretty scary holding if you live in Virginia andare in the habit of expressing yourself anonymously on theInternet. I should note that there are restrictions on how farthe ruling goes. Hadeed Carpet Cleaning's libel suit assertsthat the seven particular John Does named as defendants wereactually competitors smearing Hadeed, not customers postinggenuine reviews. Judge Clark agreed that because Hadeed claimedthe seven reviewers falsely represented themselves, it met thestandard set out in the state law governing disclosure of theiridentity.

The problem, at least according to Public Citizen, is thatthe standard in Virginia isn't clearly defined by that law.Appeals courts in the state have not previously considered thisquestion, but Public Citizen argues in the brief filed Wednesdaythat other state appellate courts have, and they've all reachedconclusions contrary to Judge Clark's. "Every other appellatecourt has held, whether under the First Amendment or under stateprocedures, that anonymous defendants are entitled to demandthat the plaintiff make a factual showing, not just that theanonymous defendant has made critical statements, but also thatthe statements are actionable and that there is an evidentiarybasis for the prima facie elements of the claim," the briefsaid. Yelp's lead counsel, Paul Alan Levy of Public Citizen,told me the Virginia trial judge flat out erred in hisinterpretation of both the Virginia statute - which Levy says ismerely procedural and does not set out a standard for disclosinga critic's identity - and prevailing precedent.

Levy was actually involved as an amicus in the two casesthat set widely used standards for when Internet serviceproviders must reveal the identity of anonymous online critics.In Dendrite v. Doe, an intermediate appeals court in New Jerseyheld in 2001 that courts must strike a balance between the FirstAmendment right to speak anonymously and the right of targets ofonline criticism to assert claims based on the anonymous posts.Among other requirements, Dendrite holds that targets must putforth evidence sufficient to withstand a dismissal motion beforethey can obtain an order directing the disclosure of critics'identities. A few years later, the Delaware Supreme Court, inDoe v. Cahill, set the bar even higher. Under Cahill, when apublic figure (in this case, a state politician) sues ananonymous critic for defamation, he or she must be able to showsufficient evidence to withstand summary judgment on eachelement of the claim in order to unmask the critic's identity.

There's an "emerging consensus," according to a 2012 studyin the Yale Journal of Law & Technology by media law professorsJason Shepard and Genelle Belmas of California State Universityat Fullerton: In libel cases attempting to unmask anonymousposters, the standards laid out in the New Jersey and Delawarecases appropriately balance both sides' rights. "The Dendriteand Cahill tests recognize the importance of anonymous speechwhile still providing the potential to find out the speaker'sidentity if the speech causes sufficient harm," the professorswrote.